Settlement negotiations constitute a reasonable execuse under 3012(d) and 5015(a)(1) by implication

Pena-Vazquez allowed a late answer before entry of a default judgment. It did not hold that settlement negotiations automatically excuse a default, or that they remove the merit requirement on a motion to vacate an entered judgment.

Last reviewed: September 2026.

Historical note: Pena-Vazquez concerns late-answer relief under CPLR 3012(d), not a decision granting excusable-default relief under CPLR 5015(a)(1).

Acceptance of the answer mattered first

In Pena-Vazquez v Beharry, 82 AD3d 649 (2011), the First Department affirmed denial of the plaintiffs’ default motion. The lower court had also, on its own initiative, deemed the answer timely.

The opinion first found that accepting the answer without objection waived the late service and default. It then gave an alternative reason: discussions with the defendants’ insurer provided a reasonable excuse for the delay. Its statement that a meritorious defense was unnecessary concerned this late-answer setting, citing Verizon New York v Case Construction, 63 AD3d 521 (2009).

CPLR 3012(d) concerns an extension or acceptance of an untimely pleading. Relief from an entered judgment under CPLR 5015(a)(1) is a separate question. The historical title’s phrase “by implication” should not be read as an additional holding.

Jason’s account below explains why the distinction mattered in his practice. His reference to contrary Third Department cases is historical commentary; this note does not establish a current departmental split or an automatic extension while negotiations continue.

Jason’s original 2011 note

Jason’s original 2011 account follows. His experience and assessment are preserved as historical commentary, not a prediction that negotiations will protect an answer deadline.

This a really important decision, because there is case law from the Third Department that runs contra.

To share a personal story, I had a series of cases with an unnamed plaintiff firm who put an offer of 85/50 on the table. I was in default. Issues arose because of potential policy exhaustion issues. I made the grave mistake of taking one month to get back to said plaintiff. When I got back to the Plaintiff, I was told in substance that the matter is in judgment, and this plaintiff attorney would not be doing justice for my client by taking anything less than 100/100; after all, would I sacrifice my client in that regard?

Needless to say, this case is in First Department, I have a meritorious defense and now a reasonable excuse. So 85/50 now became a deposition of your doctor and a jury trial. Whose doing justice for their client now? No, I will not disclose the Plaintiff, although I really should.

Connect to the Encyclopedia

Start with the default judgments and law office failure guide.

• Viviane Etienne and Astoria Wellness: inaction after notice
• Pro-Med: an explanation unsupported by records
• City Dental: a vacatur branch left undecided
• Brand Medical: late opposition and delayed vacatur

For review of a particular default or missed deadline, contact the office.